County smoking ban struck down by courts

An appeals court on Tuesday struck down Allegheny County's smoking ban, which could force both sides back into the ring.

A three-judge Commonwealth Court panel ruled the county didn't have the authority to adopt the smoking ban that went into full effect May 1. County Council might decide by its June 5 meeting whether to appeal to the state Supreme Court, Council President Richard Fitzgerald said.

"I see no reason to retreat now," he said.

Opinions about the ruling varied.

Two Downtown restaurant owners who battled the ban in court lauded the decision as a triumph for individual rights.

"We're pretty elated," said John Petrolias, 71, of O'Hara, owner of Smithfield Cafe. "We took up this battle, not because we're pro- or anti-smoking. ... I think the driving force behind our fighting this thing is, 'How much is government going to get into our lives?' "

"This is a victory for all citizens, because it means our rights haven't been eroded," said James Mitchell, who owns Mitchell's Restaurant & Bar. "Do we want more government? Most people would say a resounding 'No.' "

Lawmakers and anti-smoking activists called the decision part of a debate on the powers of county and state government. Others said it could spur a statewide ban.

"We still need to protect everybody, and that's why we need a statewide law," said Cindy Thomas, executive director of Tobacco Free Allegheny. "We really need to keep working on Harrisburg."

Commonwealth Court said the state's Clean Indoor Air Act of 1988 preempts any local ordinance regulating smoking.

"Basically, the Legislature has told the municipalities that the Legislature has reserved the right to regulate smoking indoors," said county Solicitor Mike Wojcik. "Commonwealth Court decisions are binding on the entire state. To the extent of other counties passing smoking bans, this decision will be an impediment."

For others, the ban was about health.

"It's a major health hazard and it's very disappointing this technicality (in state law) is being allowed to get in the way of doing what is good for the public," said Dr. Ronald Herberman, director of the University of Pittsburgh's Cancer Institute. "Hopefully, the state will feel obliged to do the right thing."

County officials said they do not know how much money was spent implementing and enforcing the ban.

The law -- which restricted smoking at most workplaces -- took partial effect Jan. 2, though Common Pleas Judge Michael A. Della Vecchia granted a temporary injunction to allow smoking to continue in bars and restaurants through April 30. Commonwealth Court issued an injunction May 1, allowing smoking to continue in bars and restaurants while it decided the appeal from the two local eateries.

In the past five months, the county fielded 225 smoking complaints, issued 59 warnings and conducted five inspections, Health Department spokesman Guillermo Cole said. It issued one fine: $16,250 for a March 21 bingo game at the Lithuanian Citizens' Society of Western Pennsylvania on the South Side.

That fine is now null and void, Cole said. The society's president, John Baltrus, 47, of Jefferson Hills, is excited about not having to pay the fine, but unsure whether the ban's repeal will be good for business.

"Will we get our customers back who we lost when we stopped allowing smoking?" he said. "We'll try a whole floor smoke-free and see what happens."

UPMC plans to ban smoking in and around all of its buildings July 1. And Cole said some restaurants are following suit.

A spokesman for the Pirates, which banned smoking this season at PNC Park, declined to say whether that policy would continue in light of the court decision.

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